Term, Default, and Termination

3.01 Term. The term of this Agreement will begin on the Effective Date and shall be in full force and effect until three (3) years from date hereof.

3.02 Termination. This agreement may be terminated at will by either party upon written notice by certified mail sixty (60) days in advance of the desired effective date of termination 3.03 Default. If either Party breaches any term, or terms, of this Agreement, then the breaching party shall have thirty (30) days from the date that it receives written notification of the breach from the other Party to commence good faith efforts to cure such breach. If the breach has not been cured within a reasonable period of time, then the non-breaching Party may terminate this Agreement by providing thirty (30) days written notice of its intent to terminate.

7 | P a g e IV. Miscellaneous Provisions

4.01 No Waiver of Immunity. This Agreement does not waive County rights under a legal theory of sovereign immunity. This Agreement does not waive City rights under a legal theory of sovereign immunity. Nothing herein shall be deemed to alter or change the legal responsibility of either Party under existing law for road repairs, nor will this agreement cause either Party to incur additional liability other than liability it would have under existing law without the existence of this Agreement.

Since the County shall be performing governmental functions on behalf of Mountain City, Mountain City shall further assist the County in asserting any and all sovereign governmental immunity rights or limitations in defending any claims made against the County related to any work performed on behalf of Mountain City.

4.02 Employment Discrimination. The Parties shall not subscribe to any personnel policy which permits or allows for the promotion, demotion, employment, dismissal, or laying off of any individual due to race, color, national origin, age, sex, or which is in violation of applicable laws concerning the employment of individuals with disabilities.

4.03 Independent Contractor. The County, its employees, officers, agents, and assigns are employees of the County and not employees of Mountain City.

4.04 Partnership/Joint Venture. Nothing herein shall in any way be construed or intended to create a partnership or joint venture between the Parties or to create the relationship of principal and agent between or among the Parties. None of the Parties hereto shall hold itself out in a manner contrary to the terms of this paragraph. No Party shall become liable for any representation, act, or omission of any other Party contrary to the terms of this paragraph.

4.05 No Warranties. County, as the entity performing the services, states that it offers no warranties of any kind express or implied including, but not limited to, fitness for use.

4.06 Indemnification and Hold Harmless. County will not indemnify, defend or hold harmless, in any fashion, Mountain City from any claims arising from any failure, regardless of the language in any attachment or other document that Mountain City may provide. The County shall have no liability as to any action in the furtherance of this Agreement unless otherwise specified under Texas law. To the extent permitted by law, City does hereby release and hold harmless County from any and all claims, damages or cause of action, for damage to underground utilities caused by County while performing work pursuant to this Agreement and City does hereby assumes full responsibility for such damage. To the extent permitted by law, City further does hereby agree to hold County harmless from and against any and all claims, losses, damages, causes of action, suits and liabilities of every kind for injury or death to any person or damage to properly arising out of or in connection with the work to be performed under this Agreement. The parties shall maintain typical and appropriate insurance including employer’s liability, comprehensive general liability, automobile, and errors and omissions insurance in amounts sufficient to provide the indemnification provided for herein during the term of the Agreement. Except for employee’s liability insurance and errors and

8 | P a g e omissions insurance, the Parties shall name each other as additional insureds on each other’s polices obtained herein.

4.07 Entire Contract. This Agreement constitutes the entire Agreement between the Parties hereto and supersedes all prior Agreements, understandings and arrangements, oral or written, between the parties thereto with respect to the subject matter hereof. The Agreement may not be in anywise modified except by a separate writing mutually approved and signed by the Parties.

4.08 Interpretation of Agreement. This Agreement or any portion thereof shall not be interpreted by a court of law to the detriment of a Party based solely upon that Party’s authorship of the Agreement or any portion thereof.

4.09 Assignment. No assignment of this Agreement, in whole or in part for any purpose shall be made by either Party without the prior written consent of the other Party. Subject to this limitation, this Agreement shall bind and inure to the benefit of the successors and assigns of the Parties.

4.10 Notices. All written notices required by the terms of this Agreement shall be in writing and deposited in the United States mail addressed to such Party at the address set forth below:

If to Mountain City:

Tiffany Curnutt, Mayor 4600 Jack C Hays Trail Mountain City, Texas 78640

If to Kyle:

Scott Sellers, City Manager 100 W. Center Street Kyle, TX 78640 If to the County:

Mark Jones, Commissioner – Precinct 2 5458 FM 2770 (at Crystal Meadow Drive) Kyle, Texas 78640

With Copy to:

General Counsel – Mark Kennedy (or successor) 111 E. San Antonio Street, Suite 202

San Marcos, TX 78666

These addresses may be changed by either Party by notice in writing to the other Party.

9 | P a g e 4.11 Severability. If for any reason, any one or more paragraphs of this Agreement are held legally invalid, such judgment shall not prejudice, affect, impair or invalidate the remaining paragraphs of the Agreement as a whole, but shall not be confined to the specific paragraphs, clauses, or paragraphs of this Agreement held legally invalid.

4.12 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas and the venue for any cause of action shall be brought in Hays County, Texas.

4.13 Execution in Counterparts. This Agreement may be executed in any number of

counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.

4.14 No Waivers. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

4.15 Modifications to Agreement and Scope of Work. No amendments to this Agreement shall be considered valid by either Party unless they are in writing and approved by each Party’s respective governing body.

4.16 Current Revenues Available and No Tax Revenue. Both parties agree that any payments that are made under this Agreement for governmental functions or services will be made from current revenues available to the paying Party. Tax revenue may not be pledged to the payment of amounts agreed to be paid under this Agreement.

4.17 No Third Party Beneficiaries. Nothing in this Agreement shall entitle any third party to any claim, cause of action, remedy, or right of any kind, it being the intent of the Parties that this Agreement shall not be construed as a third party beneficiary contract.

4.18 Force Majeure. If by reason of Force Majeure, the County shall be rendered unable in whole or in part to carry out its obligations under this Agreement in accordance with the terms and conditions of this Agreement, it shall not be considered a breach of this Agreement. The term “Force Majeure” as used in this Agreement shall mean acts of God, strikes, lock-outs, or other industrial disturbances, acts of the public enemy, orders of any kind of the federal or state government, or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, or any other causes not reasonably within the control of County.

4.19 Fair Compensation. All parties find that all payments described in this Agreement are in an amount that fairly compensates the performing party for the services or functions performed under this Agreement.

10 | P a g e 4.20 Authority to Agreement. The Parties, individually, hereby affirms that it has the authority to enter into this Agreement pursuant to a duly adopted resolution and/or ordinance of its governing body and that its representative has the authority to execute this Agreement. Each party certifies that the services specified above are necessary and essential for activities that are properly within the statutory functions of each party and serve the interest of efficient and economical administration of each entity.

4.21 Effective Date. This Agreement shall not be binding upon the Parties until it has been properly approved and signed by the authorized representatives of the governing bodies of the respective Parties. The Effective Date of this Agreement shall be effective on the date of execution by all Parties.

(SIGNATURES FOLLOW ON THE NEXT 3 PAGES)

11 | P a g e Executed on this ______ day of __________________, 2015

CITY OF KYLE, TEXAS

By: ________________________________

Todd Webster, Mayor Attest:

By: ________________________________

Name: Amelia Sanchez Title: City Secretary

ACKNOWLEDGMENTS §

§

COUNTY OF HAYS §

This instrument was acknowledged before me on _____________________________, by TODD WEBSTER, Mayor of the CITY OF KYLE, TEXAS, a Texas municipal corporation, on behalf of said corporation.

____________________________________

Notary Public, State of Texas

12 | P a g e Executed on this ______ day of __________________, 2015

CITY OF MOUNTAIN CITY, TEXAS